Judgments - R (on the application of Clift) (FC) v. Secretary of State for the Home Department (Respondents)
Secretary of State for the Home Department (Respondent) v. Hindawi (FC) (Appellant) and another
Secretary of State for the Home Department (Respondent) v. Hindawi and another (FC) (Appellant) (Conjoined Appeals)

HOUSE
OF LORDS

SESSION 2006-07

[2006] UKHL 54

on appeal
from [2004] EWCA Civ 514

OPINIONS

OF
THE LORDS OF APPEAL

for
judgment IN THE CAUSE

R (on the application of Clift) (FC) (Appellant) v. Secretary of State for the Home Department (Respondents)

Secretary of State for the Home Department (Respondent) v. Hindawi (FC) (Appellant) and
another

Secretary of State for the Home Department (Respondent) v. Hindawi and another (FC)
(Appellant) (Conjoined Appeals)

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Counsel

Appellants:

For Clift

Tim Owen QC

Kris Gledhill

For Hindawi and Headley

Tim Owen QC

Hugh Southey

(Instructed by Amal
for Clift, Birnberg Peirce for Hindawi and Irwin Mitchell for Headley)

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of Clift) (FC) v. Secretary of State for the Home Department (Respondents)

Secretary of State for the Home Department (Respondent) v. Hindawi (FC) (Appellant) and another

Secretary of State for the Home Department (Respondent) v. Hindawi and another (FC) (Appellant)

(Conjoined Appeals)

[2006] UKHL 54

LORD BINGHAM OF CORNHILL

My Lords,

1. These three appeals, arising on somewhat differing facts, present a common question. The appellants are former or serving prisoners. The question is whether the early release provisions to which each of the appellants respectively was subject discriminated against him, unjustifiably, in breach of article 14, in conjunction with article 5, of the European Convention on Human Rights.

Sean Clift

2. The first-named appellant (Sean Clift) is a British national. On 30 April 1994 he was sentenced at Lincoln to 18 years' imprisonment for very serious crimes including attempted murder, which carried a maximum sentence of life imprisonment. Under the legislative regime applicable to his case he became eligible for release on parole on 13 March 2002 and entitled to release on 18 March 2005. On 25 March 2002 the Parole Board recommended his release on parole but the Secretary of State rejected that recommendation on 25 October 2002. The Parole Board reconsidered the case and on 17 March 2003 did not recommend release, but on 25 February 2004 it again did so. On this occasion the Secretary of State accepted the recommendation, and on 10 March 2004 Mr Clift was released on licence.

3. Had Mr Clift been sentenced to a term of less than 15 years, or had he been sentenced to life imprisonment, the Secretary of State would have been legally obliged to comply with the recommendation of the Parole Board. That is the effect of sections 33(2) and (5), 34, 35 and 50(2) of the Criminal Justice Act 1991, section 28 of the Crime (Sentences) Act 1997, section 275 of the Criminal Justice Act 2003 and paragraph 2 of the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218) ("the 1998 Order"). But paragraph 2 of the 1998 Order preserved the Secretary of State's final power of decision, following a recommendation for release by the Parole Board, in relation to prisoners serving determinate terms of 15 years or more.

4. The first-named appellant contends that this early release regime discriminated against him in breach of his rights under articles 5 and 14 of the European Convention, without justification, in denying him a right enjoyed by long-term prisoners serving determinate sentences of less than 15 years or life sentences prisoners: the right to be released on the recommendation of the Parole Board.

Nezar Hindawi

5. The second-named appellant (Nezar Hindawi) is a foreign national. On 24 October 1986 he was sentenced at the Central Criminal Court to 45 years' imprisonment for very serious terrorist offences. A deportation order was made against him on about 13 November 2000. Under the parole regime in force when he was sentenced, which continues to apply, he became eligible for release on parole on 18 April 2001, although he is not entitled (on the agreed facts) to be released until 8 June 2016. On 20 June 2001 and 2 April 2003 the Secretary of State rejected an application by Mr Hindawi for early release. He remains in prison. Because he is a long-term prisoner liable to removal from the United Kingdom, the Parole Board has no power to recommend his release, and the decision on release rests with the Secretary of State alone. If he were not liable to removal, the Parole Board would have power to recommend release although the Secretary of State would not be legally obliged to give effect to the recommendation since he is serving a sentence of more than 15 years. That is the effect of sections 33(2) and (5), 35, 46(1) and 50(2) of the 1991 Act and paragraph 2 of the 1998 Order.

6. Mr Hindawi contends that this early release regime discriminates against him in breach of his rights under articles 5 and 14 of the Convention, without justification, in denying him a right enjoyed by long-term prisoners not liable to removal serving determinate sentences of less than 15 years or life sentences: the right to be released on the recommendation of the Parole Board. He says, invoking section 6 of the Human Rights Act 1998, that sections 46(1) and 50(2) of the 1991 Act are incompatible with the Convention.

Prince Charles Headley

7. The third-named appellant (Prince Charles Headley) is a foreign national. On 31 January 2000 he was sentenced at Sheffield to seven years' imprisonment for drugs offences. A deportation order was made against him on 9 December 2003. Under the regime applicable to him he became eligible for early release on parole on 7 January 2003. His application for early release was referred to the Parole Board in error: it was refused by the Board on 15 January 2003 and by the Secretary of State on 9 May 2003. But a further application to the Secretary of State was successful, and he was released from his sentence on 23 December 2003. He was thereafter detained with a view to deportation, recalled to prison, remanded in custody and eventually sentenced for other offences. These later events are not material to his appeal. Under his seven-year sentence, as a long-term prisoner liable to removal from the United Kingdom, the decision on his early release rested with the Secretary of State alone. Had he not been liable to removal the Parole Board and not the Secretary of State would have decided on his release. That is the effect of sections 33, 35 and 46(1) and 50(2) of the 1991 Act and paragraph 2 of the 1998 Order.

8. Mr Headley contends that this early release regime discriminated against him in breach of his rights under articles 5 and 14 of the Convention, without justification, in denying him a right enjoyed by long-term prisoners not liable to removal serving sentences of less than 15 years or life sentences: the right to be released on the recommendation of the Parole Board. He makes the same case on incompatibility as Mr Hindawi.

9. The provisions referred to above have been repealed and replaced by the Criminal Justice Act 2003. But they continue to apply to offences committed before 4 April 2005 under the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (SI 2005/950 (C 42)), and therefore continue to apply to these appellants.

10. The parties very helpfully agreed that three issues arise for decision by the House. But the second question arises only in the appeal of Mr Clift, and not in the other two appeals. Depending on the answer to the second issue in Mr Clift's appeal, the answer to the third issue may, in his case, not be decisive.

Articles 5 and 14 of the European Convention

11. Articles 5 and 14 of the European Convention, given domestic effect by the 1998 Act and in force at all times material to these appeals, are now very familiar. So far as relevant, the articles provide:

"Article 5

Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful "

"Article 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The first issue

12. The first issue, arising in all three appeals, is whether the appellants' applications for early release came within the ambit of article 5 of the European Convention so as to engage article 14 of the Convention. The issue is so expressed in recognition of a clear, consistent and very well-established line of Strasbourg authority. A recent summary of the relevant principles was given by a Grand Chamber of the Strasbourg court in Stec v United Kingdom (2005) 41 EHRR SE 295 in a passage directed of course to the case then before the court:

"38. The Court recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions (see, amongst many authorities, Sahin v Germany [GC], (2003) 36 EHRR 765 at [85]. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall 'within the ambit' of one or more of the Convention Articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at [71]; Schmidt(Karlheinz) v Germany (1994) 18 EHRR 513 at [22]; and Petrovic v Austria (1998) 33 EHRR 307 at [22].

39. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court's case law. It was expressed for the first time in Belgian LinguisticCase (No 2) (1968) 1 EHRR 252 at [9], when the Court noted that the right to obtain from the public authorities the creation of a particular kind of educational establishment could not be inferred from Article 2 of Protocol No 1, and continued as follows:

' nevertheless, a State which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14.'

40. The Court must decide, therefore, whether the interests of the applicants which were adversely affected by the impugned legislative scheme fell within the 'ambit' or 'scope' of Article 1 of Protocol No 1."

13. In M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, the House had recent occasion to review the Strasbourg jurisprudence on the applicability of article 14, and attempted to distil the essence of the relevant principles. Although different members of the House used different language, and the outcome vividly illustrated the difficulty which may arise in applying the principles to a concrete case, none of these opinions was criticised as inaccurate or incomplete, and I do not think any purpose will be served by repeating those opinions or citing passages from them. Plainly, expressions such as "ambit", "scope" and "linked" used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M, at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect.

14. The appellants invoke article 5. There is no doubt what value article 5 exists to protect. It is the fundamental right to liberty and personal security. Thus the article sanctions infringement of that right only in certain situations, defined with some particularity in paragraph (1)(a)-(f); only in accordance with a procedure prescribed by law; and only subject to a detainee's right to challenge before a court the lawfulness of his detention. The presumption, as under the Bail Act 1976, is in favour of freedom.

15. It was argued by the Secretary of State that each of the appellants was lawfully detained after conviction by a competent court. Article 5(1)(a) was therefore satisfied. The sentences imposed by the court were not themselves criticised as discriminatory, and could have been challenged had they been so. Those sentences provided lawful authority for detention of the appellants until such time as, under domestic law, they became entitled to release: R (Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1. At that point continued detention would become unlawful (R v Governor of Brockhill Prison, Ex p Evans (No 2)[2001] 2 AC 19), but not before. Article 5(4) had no part to play in implementing the sentence before release. It followed that discriminatory implementation of the sentence, however extreme and unjustifiable, was not within the ambit of article 5.

16. This argument is in my judgment a mixture of the true and the false. I would agree that the sentences passed on the respective appellants satisfied article 5(1)(a) and provided lawful authority for the detention of the appellants until such time as, under domestic law, their detention became unlawful. Giles established that a prisoner sentenced to a determinate term of years cannot seek to be released at any earlier time than that for which domestic law provides. During the currency of a lawful sentence, article 5(4) has no part to play. But the Secretary of State's argument founders, in my opinion, on a failure to recognise both the importance, in our system, of the statutory rules providing for early release and the close relationship between those rules and the core value which article 5 exists to protect.

17. The Convention does not require member states to establish a scheme for early release of those sentenced to imprisonment. Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or proportion of the sentence has been served, if that is what domestic law provides. But this is not what the law of England and Wales provided, in respect of long-term determinate prisoners, at the times relevant to these appeals. That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged.

18. A number of grounds (economy and the need to relieve over-crowding in prisons) have doubtless been relied on when introducing pre-release schemes from determinate sentences such as those under consideration here. But one such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence; that in some cases those interests will be best served by releasing the prisoner at the earlier, discretionary, stage; and that in those cases prisoners should regain their freedom (even if subject to restrictions) because there is judged to be no continuing interest in depriving them of it. I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5, and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under article 14.

19. This is a conclusion I would unhesitatingly reach even if there were no Strasbourg authority on the point. But the Strasbourg institutions have consistently recognised the possibility of a claim under article 14, in relation to article 5, where a parole scheme is operated in an objectionably discriminatory manner. In Webster v United Kingdom (Application No 12118/86), (unreported) 4 March 1987 the Commission, in an admissibility decision, said:

"The Commission notes that the applicant was detained in accordance with a procedure prescribed by law after conviction by a competent court, pursuant to Article 5 para. 1(a) of the Convention. According to that conviction the applicant could have been expected to serve his full five year sentence. The Commission considers, nevertheless, that if a prison pre-release scheme were operated in a discriminatory manner, an issue could arise under Article 5 of the Convention, read in conjunction with Article 14 . Article 14 guarantees freedom from discrimination in the securement of Convention rights such as the right to liberty and security of person laid down in Article 5 ."

In Gerger v Turkey (Application No 24919/94) (unreported) 8 July 1999 the applicant complained that, as a defendant convicted of terrorism, he was denied parole until a later stage in his sentence than other prisoners. The court held the complaint to be inadmissible, but in doing so said:

"68. The Government submitted that Article 5 § 1 (a) did not secure convicted prisoners a right to automatic parole. They added that in any event the restrictions on entitlement to parole imposed on persons convicted of an offence under the Prevention of Terrorism Act were warranted by the intrinsic seriousness of such offences.

69. The Court considers, firstly, that, although Article 5 § 1 (a) of the Convention does not guarantee a right to automatic parole, an issue may arise under that provision taken together with Article 14 of the Convention if a settled sentencing policy affects individuals in a discriminatory manner."